Philippine Lawbytes 225: Quantum Money in the Philippines? Copyright by Dr. Atty. Noel G. Ramiscal

One of the illustrious lawyers in the Philippines attended one of my MCLE lectures a few months ago, and she is none other than Atty. Liwayway Vinzons-Chato, a past Commissioner of the Philippine Bureau of Internal Revenue (BIR) and a former Congressperson. At the end of my October 8, 2022 MCLE lecture for the University of the Philippines Institute of Administration of Justice (UPIAJ) on “Cyber Ethics in the Age of A.I.”, Atty. Vinzons-Chato interpellated me regarding “quantum money,” because I briefly discussed the current developments in quantum computing and Elon Musk. She claimed that she had been working with several entities abroad in bringing this type of currency into the Philippines. She further stated that she had approached several government agencies, among them the BIR, and the Bangko Sentral ng Pilipinas (BSP), regarding the legal treatment of this currency, and they cannot give her any coherent answer.

Her questions came timely, as it was during this period that I was writing a Report commissioned by the UPIAJ which I dubbed as “A.I., Technology, Morality and the Philippine Code of Professional Responsibility”. I wrote about this in my previous blog:

Philippine Lawbytes 224: The Cyber Ethics of Technological Competence and the 1988 Philippine Code of Professional Responsibility for Lawyers (by Dr. Atty. Noel G. Ramiscal)

In my Report, I delved on technological developments, including quantum technology and its potential utilization in our lives. 

I first learned of quantum money when I was doing my research for my Cryptology book way back in 2012. My book which was eventually published in 2016 and sold out in 2018 had a section on cryptocurrency, specifically Bitcoin, but did not include a section on quantum money, because they are fundamentally different. Atty. Vinzons-Chato’s questions piqued my interest to the extent that I mentioned it in my UPIAJ commissioned Report, and I have decided to write this article, which would probably be the first by a Philippine lawyer on quantum money.   

The concept of quantum money was first introduced in a paper written by the physicist Stephen Wiesner in 1969 on “conjugate coding” (which was published only in 1983), which utilizes the principles of quantum mechanics like entanglement and superposition to work. For anyone interested, I have a PDF copy of this paper which I secured from an MIT online source. I read and strove to understand what I can of this paper, and also several secondary resources. 

Quantum money and cryptocurrencies rely on cryptography. Cryptocurrencies like bitcoin still rely on the binary system of 1s and 0s of classical mathematics. Quantum money on the other hand operates on “qubits” based on the principles of quantum mechanics, particularly on superposition, which means that a qubit can both be a “1” and a “0”.

Cryptocurrencies are digital in their form. Of course, they can be exchanged for paper currencies using crypto exchanges, and even ATMs. But the quantum money envisioned by Wiesner in his 1969 paper apparently operate very much like the paper currency that we have, with the absolute difference that it is embedded with quantum bits via photons that exist in a superpositional state, which can only be verified when such bits are actually measured by a quantum device. In my Cryptology book, I explained further what superposition, multiverse and quantum entanglement concepts are which are essential to the comprehension of quantum technology.

Front Cover of Dr. Atty. Noel G. Ramiscal’s Cryptology Book published in 2016, sold out in 2018

The way I understood what Wiesner wrote is that there should be a system that is constructed which would provide a mechanism for a tangible currency, particularly paper bills, to be unforgeable. This “foolproof” concept requires the minting or printing of paper bills, which aside from having serial numbers, would also contain the properties of entangled photons that are used to transmit information. This information correspond to the original quantum state of each particular photon that is noted by the printer, or a bank, which should keep this information secret. It must be emphasized that the whole process of printing, embedding the photons on the bill and measuring the photon states are quite complicated as the photons are very fragile.

A counterfeiter would not know the original quantum state of the photons in an original bill with the specific serial number. Any attempt by the counterfeiter to verify or measure the quantum state of the photons in the original bills that they want to copy, would result in changing the photons’ original quantum state, which is the reason why the original bills are impossible to replicate.  

To check for counterfeiting, a seller can verify the authenticity of the bill presented by a buyer, by comparing the current quantum state of the photons in the bill, with the original quantum state of the photons in such bill as noted by the bank or printer, with a quantum device. If the current quantum state is the same as the original quantum state, the bill is genuine. If the current quantum state has switched to an “orthogonal” state or a different quantum state from the original one, the bill is fake.

Since the thrust of the cryptocurrency revolution is to get away from the control of any central banking system, Wiesner’s concept has been adopted to the digital world. Quantum money in this evolution would not be printed by any central bank or traditional printer. It can be done via a digital system created with quantum computers that rely on the no-cloning theorem, which posits that it is impossible to clone the unknown quantum state. This would allow anyone to verify the authenticity of the currency without going thru a central banking system. Several quantum money systems have been proposed built on the mathematical concepts surrounding “knots”, modular forms and lattices that can work with quantum computers. These proposals are beyond the scope of this article and the reader would do well to research on the foundations and applications of these concepts.

But in all of these proposals involving quantum money, they require the application of a robust system of quantum computers, quantum key distribution and secure quantum channels where the original quantum states of the qubits can be transmitted and verified. Then too is the issue of having a quantum internet where transactions with quantum money can be facilitated or supported.

The Illustrious Atty. Liwayway Vinzons-Chato who interpellated Dr. Atty. Ramiscal on quantum money in his MCLE lecture last October 8, 2022

Atty. Vinzons-Chato did not provide the details for the mechanisms or structures that must be put in place for quantum money to become a feasible proposition in the Philippines, nor the names of the parties she had partnered with to bring quantum money to the Philippines.

As far as I know, none of these currently exist in the Philippines, and it is doubtful if any of the systems I mentioned, in their fully realized states, exist at all. There are banking institutions and entities like Google that have invested in quantum algorithms, technologies, and building of quantum computers. While some have announced breakthroughs, these are not enough to bring what is called the “quantum financial system” (QFS), and even fully functioning and commercially viable quantum computers, to life. The development of quantum money is steeped in secrecy due to intellectual property rights, finance and trade laws, e-commerce and cybercrime concerns. Some trade or industry reports stated that the Chinese had, or are continuously developing this type of currency, but the details are sketchy and the sources are unnamed. Even information from academia within the past decade have not revealed that quantum money has become an actual feasible option.

Any news or undertaking concerning quantum money must also be received with caution. For years, there had been, and still are, reports with dubious sources that allegedly outlined the systems and processes of how quantum money as a legal fiat can be backed by gold deposits. These must supposedly comply with the Global Economic Security and Reform Act (GESARA) which was taken from the National Economic Security and Recovery Act (NESARA), an unsuccessful proposal submitted by the late Harvey Francis Barnard to the U.S. Congress to reform the monetary policies and structures of the U.S. Government. However Barnard’s proposal was taken over by conspiracy theorists and purveyors of online scams.

Even so, now is certainly the time for the regulators from the banking, scientific, and technological industries, and those from the academe and the legal profession to become aware of this important prong in the QFS that is considered by some as the future of economic transactions. In my UPIAJ commissioned report, I mentioned my suggestion of establishing a Committee on Law and Technology (CLT) to look, analyze and anticipate the possible significant ramifications of emerging technologies. Quantum money, which I specifically cited in my Report, definitely fits the CLT’s purpose.

Philippine Lawbytes 216: The Terrains of Sexual and Gender Based Violence Against Women and LGBTQIA+ (or the Vast Unacknowledged Sexual and Gender Variants), © by Dr. Atty. Noel G. Ramiscal

A brief Backgrounder:

The University of the Philippines Cebu System instituted, via its Office of Anti-Sexual Harassment and its Gender and Development Office, the first responders’ Drill training on Anti-Sexual Harassment. The training is quite novel and radical because the perspective is that anyone can be a first responder to any victim of sexual harassment, not just persons of authority. I was fortunate to have been hired by them to conduct two training sessions. I wrote about the first session in “Philippine Lawbytes 213: The First Responders’ and Survivor’s Training in Electronic Evidence on Online Sexual Harassment and Violence in the UP Cebu System“, which you can read in the April 2022 content of this blogsite.

Title Slide Powerpoint of Dr. Atty. Noel G. Ramiscal June 6 2022 Training Course UPCEBU Anti-Sexual Harassment Drill for First Responders

In my second training session, I chose to apprise the participants of several different things which I noticed have not been done, or not sufficiently done by Philippine training providers on this same subject, so as to give them a broader view of why violence against women and LGBTQIA+ people are rampant, particularly in South and Southeast Asia. Situationally, China and India are the biggest skewers of sex preference for males. In a 2021 world population count according to biological sex, the ratio of males to females would be 1 to 1 if these two countries would be excluded. Their inclusion upped the ratio to 1.07 to 1 in favor of males. Culturally, these two countries are among several states where female infanticide is practiced, and the discrimination, violence and even killings of women are deeply rooted in their beliefs and institutions. Infant brides are a reality in China and dowry killings are still practiced in India.

UPCEBU Poster June 6 2022 Training lecture Dr.Atty.Noel G. Ramiscal for First Responders on Anti-Sexual Harassment

Apart from the statistics of violence, I showed the first responders examples of philosophies, religious beliefs, rituals, and historical evidence where the supposed inferiority of women and those of alternative sexual and gender ideations (LGBTQIA+) are inculcated, rationalized and used to subjugate, abuse and kill them, or equally worse, make them invisible in society. The extrajudicial killings of gay men, the “curative” raping of lesbians, the institutional treatment of transwomen as prostitutes, the real and online hate crimes perpetrated against those who cross some imaginary gender line, are an actual day to day reality, and yet too few statistics, and studies have been made on these. In fact, most statistics on sexual violence and abuse all over the world, and not surprisingly in the Philippines, do not factor sexual orientation and gender identity of the victim. This is a subtle way of not recognizing the existence, and therefore the human rights and interests of people who profess and practice their sexual and gender variance, from the dominant cisgender society.

UP CEBU ZoomYouTube Photoop June 6 2022 First Responders’ Training on Anti-Sexual Harassment

One of the most effective ways of keeping the status quo is making people ignorant of the vast and rich sexual and gender variance of people across countries, cultures and humanistories. Most Philippine people would probably know of only five genders: girl, boy, bakla/bading, tomboy/tibo, and trans. In my personal and professional journey, I have uncovered over (ninety) 90 sexual and gender variants, and I think there is more. Philippine training providers do not delve so much on these variances for reasons I cannot fathom. So, to differentiate and make my training session useful, I discussed about (sixteen) 16 sexual and gender variances, to help pave the way for understanding and normalizing the truth about these variances, which is: they are an essential part of a human’s being, character, growth, expression, and Life. To deny these variances would be to deny the Humanity and Life of the person.

In keeping with the recognition of sexual and gender variances, I made special mention of the use of the correct pronouns in addressing people. I lauded the fact that the person who introduced me in the first training session for UP Cebu, specifically asked for my pronouns. To most Philippine people there are only two sets of personal pronouns that they know and recognize: he/him/his and she/her/hers. They would probably more than raise their eyebrows if a person would come to them and say “I am they/them/theirs” which would be what pansexuals would use to refer to themselves. Moreover, as the world and language evolve in understanding sexual and gender variance, neopronouns have sprung-up to articulate this reality. Thus, I introduced the first responders to the neopronouns that include “xe/xem/xyrs” and “ne/nem/nirs”. Using the correct pronouns is a sign of respect for the sexual/gender variant person. Ignoring this had ended relationships in different parts of the world.

Comment on Dr. Atty. Noel G. Ramiscal’s June 6 2022 UPCEBU LGBTQIA+ Training Session

I spent some time discussing the plight of intersex people, because again, this is another matter that Philippine training providers do not generally discuss. Intersex people are those who are born with genitalia that are quite ambiguous, or do not conform to the usual appearance or “standard” of what a penis or vagina should look like or be, or in rare cases, have both genitalia. I cannot find any Philippine study or survey regarding the existence and treatment of people with this condition. We have one Supreme Court case, Republic v. Cagandahan, where the court recognized the right of an intersex person to change their name and “sex” on public records to conform to the later development of their genitalia, their chosen sexual orientation, and their gender identity. That is well and good, but that is just one case. Horrible cases with tragic consequences have been documented around the world, of genital mutilation performed by doctors on intersex infants who thought they can train these babies to act, mature and live the way they should with the genitalia these brazen doctors assigned and carved out/from the skin and tissues of these children. The Philippine medical, healthcare, legal and social welfare professions and industries should address the current gaps in understanding the situation and hazards faced by Philippine intersex people.

UP CEBU JUNE 6 2022 Certificate of Appreciation to Dr. Atty. Noel G. Ramiscal

Furthermore, I discussed the travails of some of the most vulnerable LGBTQIA+ people which include transpersons, neurodivergent and differently abled people, indigenous peoples, and the elderly who have suffered much abuse of all types, as documented by several UN and other international organizations involved with the protection of human rights. Of most pressing concern are the LGBTQIA+ who are elderly with debilitating diseases that result in loss of memory, and those who belong to the autistic spectrum disorder class who are non-verbal. Both groups are in danger of suffering the most virulent types of sexual abuse and violence by opportunistic predators like their caregivers. So I gave the first responders some of the signs and telltale warnings of sexual abuse of these people. Again, these matters are not tackled by training providers in the Philippines, for reasons that I have yet to understand.

I would like to thank the UP Cebu OASH, GAD Office and the insightful inimitable Atty. Archill Capistrano who has valiantly led this progressive program for the UP Cebu System, for allowing me full autonomy to create my training course and the space to share my knowledge and advocacy for LGBTQIA+ rights borne from over three decades of searching for the answers to my own questions and those of my clients. And a big shout out to all the first responders who completed my training sessions and were able, I trust, to connect the issues, philosophies, facts, evidence and beliefs I brought to their attention, and come up with a deeper understanding of the bravery and authenticity of existence that women and LGBTQIA+ survivors of sexual violence bear.

As we celebrate the Pride Month of 2022, and in the future, here is to a kinder and less judgmental world!

Philippine Lawbytes 217: Ada Lovelace and Alan Turing: Two Figures that Stand Starkly Against the Toxic Masculinity in the STEM Industries, © Dr. Atty. Noel Guivani Ramiscal

It is a reality that women and LGBTQIA+ people in the science, technology, engineering and mathematics (STEM) fields are actually vastly underrepresented, and in some cases, bear the brunt of sexual and other forms of abuses.

One very recent example was the 2021 suit brought against Activision Blizzard, the very popular developer of online games like World of Warcraft, Call of Duty, and Guitar Hero, by the California’s Department of Fair Employment and Housing. The state suit alleged among many others, the company is a “breeding ground for sexual harassment, with male workers fostering a “frat bro” culture full of rape jokes, crude comments and groping, that even drove one female employee to suicide… due to a sexual relationship that she had been having with her male superior.” At a holiday party before her death, the woman’s male co-workers allegedly passed around a photo of her vagina, and after her death, police reportedly found that her unnamed male supervisor had “brought a butt plug and lubricant on this business trip.”

In March 29, 2022, Judge Dale Fischer of the U.S. District Court for California’s Central District, approved of a US$18,000,000 settlement by Activision Blizzard with the U.S. Equal Employment Opportunity Commission after the government agency found evidence of sexual harassment, pregnancy discrimination and related retaliation at the company. The settlement comes in the wake of Microsoft’s pending acquisition of Activision Blizzard for $68.7 billion, as part of its bid for becoming a major player in the creation of the Metaverse.

UPCEBU Poster June 6 2022 Training lecture Dr.Atty.Noel G. Ramiscal for First Responders on Anti-Sexual Harassment

In my second training session for the University of the Philippines Cebu system for their first responders in Anti-Sexual Harassment drill, an undercurrent theme is “Girls in ICT”. I provided examples of two real historical persons that can serve as inspirational figures to women and LGBTQIA+ people who are wondering if they are enough, or questioning their abilities and their beings, after suffering bullying and other forms of abuses in the STEM fields.

ADA LOVELACE (1815-1852): THE FIRST COMPUTER PROGRAMMER

Lady Ada King, later Countess of Lovelace, was born to royalty and her mother, Anna Isabella Milbanke, encouraged her to study and pursue mathematics and science so she would not suffer the “lunacy” of her father, the Romantic poet Lord George Byron who had affairs with both men and women, and who was abusive to her mother, which caused their early separation.  

Ada was an English mathematician and writer, and known arguably as the first computer programmer. She befriended Charles Babbage, the renowned mathematician, who worked on a machine called the Analytical Engine, which he never completed. Mathematician Luigi Menabrea wrote a short article on this machine for a Swiss academic journal. Ada translated it from French to English and expanded the article with her own notes, turning an 8,000-word essay into a 20,000-word paper in 1843 (Who is Ada Lovelace and why are we celebrating her?, Medium, 2021).

Ada Lovelace daguerreotype by Antoine Claudet circa 1843-1850

Ada described with great clarity and completeness how the machine would work and its potential uses, including calculating a long sequence of Bernoulli numbers and creating language and music. Her elaborate descriptions transformed the machine into a computer program. Her notes were lost then recovered and published in 1953. A hundred years after the fact, and long before any computer was invented, her notes contained the basis for a computer language (see Elizabeth Hilfrank, Ada Lovelace, Kids National Geographic, 2021). It was due to these that scientists and historians generally consider her as the first computer programmer or the inventor of scientific computing.

The Babbage historian Bruce Collier however had argued that her contribution had been greatly overstated, saying “it is no exaggeration to say that she was a manic depressive with the most amazing delusions about her own talents and a rather shallow understanding of Charles Babbage and the Analytical Engine.” (Medium article). The criticisms were all directed at her “emotional” state as a woman, and not as an intellectual and mathematical equal of Babbage.

Her work with Babbage had inspired mathematics greats like Alan Turing who was instrumental in furthering computer science. In 1979, the U.S. Department of Defense named a new computer language “Ada” in her honor. The blockchain Cardano, named its cryptocurrency “Ada” in recognition of her achievements. Every October 12 is celebrated as Ada Lovelace Day, since 2009, by women in STEM the world over.

ALAN TURING (1912-1954): THE GAY FATHER OF COMPUTER SCIENCE AND ARTIFICIAL INTELLIGENCE

Some of you may know of Alan Turing because of his portrayal by Benedict Cumberbatch in the movie “Imitation Game”. A brilliant mathematician, Turing had so many groundbreaking achievements that this very short article cannot cover. One of them is the Turing Machine based on algorithms, with an infinite memory capable of processing any set of instructions, through a mechanical process, which is basically a forerunner of the modern computer. Another is the COLOSSUS, a vacuum based electronic computer, which was considered by many as the world’s earliest working programmable electronic digital computer.

His paper “Computer Machinery and Intelligence,” published in 1950, in response partly to Ada Lovelace’s theory that you can only tell the computer what to do, dealt with the concept of artificial intelligence and what is now known as the Turing Test. This test stipulates that for a computer to be intelligent, it must deceive a human observer into believing it is human.

Alan Turing’s picture at sitn.hms.harvard.edu

As cryptanalyst for the British government during WWII, he improved on the Rejewski bombe, an electromechanical machine that enabled him and his team to decrypt German encrypted messages re: the war, and German U-boat raids. His efforts and those of his team reduced WWII by 2 to 4 years, and helped win the war against Hitler. According to Prof. Jack Copeland, Turing’s efforts in cracking the German codes, saved 14 to 21 million lives. After WWII, his work with the UK Government was sealed and classified but he continued to work as mathematician for this government.

He was a homosexual who did not hide his sexual orientation, as a sign of his personal authenticity and courage. In 1952, his home was the subject of a robbery. He told the police about the identity of the felon, and when he was asked how he came to know this, he unhesitatingly replied that his male lover knew the criminal. The police arrested him for his same sex relationship, and he was eventually convicted for “gross indecency”. This resulted in the revocation of his state clearance, which meant he was officially restricted from working with the UK government, dealing with state secrets, and doing his mathematical and scientific projects and experiments.

Alan Turing “Victim of Prejudice”, headstone on his statue located at Turing Memorial Sackville Gardens, Manchester, U.K.

Instead of prison, he chose state therapy of injections of oestrogen which allegedly was intended to neutralize his libido, but instead made him numb and depressed.

He was found by his cleaner on June 8, 1954, dead from cyanide poisoning, from a half-eaten apple beside his bed. The official coroner’s pronouncement was suicide, but there are those who to this day, attribute his death to some sort of conspiracy. Anyway one looked at his case, it was definitely the UK government’s deep seated prejudice and discrimination against gays that caused his death. Never mind his invaluable and utter priceless service for the Crown and for the World.

On December 24, 2013, he was granted pardon under the Royal Prerogative of Mercy by Queen Elizabeth II. It was a pardon fifty nine years too late, and totally unnecessary because he committed no crime in loving a man.

(Note: Much of the information in this short article on Alan Turing came from the majestic and unforgettable biography of his life, Alan Turing: The Enigma, written by a fellow brilliant gay mathematician, Andrew Hodges).

I trust that by writing these short articles on quite obscure, but legendary giants in the STEM fields, women, and LGBTQIA+ peoples who read them can hold their heads high, and know they absolutely have the right to be here, and they did not make any mistakes in treading the paths walked by these worthy exemplars of achievements and humanity.

Philippine Lawbytes 214: Automated Election Rigging, Copyright by Dr. Atty. Noel G. Ramiscal

The Ombudsman came out with a report that the party list CIBAC thru its representatives kept quoting throughout this 2022 election campaign. The Ombudsman stated that twenty percent (20%) of the Philippines’ national budget actually goes to the pockets of corrupt individuals and entities. So, if we have a Php5 trillion budget, Php1 trillion pesos are illegally channeled from the government coffers to these people, contributing to the miserable lack of funding for government needed projects in education, health, food security, agriculture, infrastructure, research and development, and all the basic services that States are legally bound to give to the people.

As we near the May 9, 2022 national elections, I am purposefully reminded by the Biblical advice given to Moses, by his father-in-law, Jethro:

Exodus 18: 21, Image from ConnectUS, Natalie Regoli, https://connectusfund.org/wp-content/uploads/2019/10/exodus-18-21.png

The Philippine Computer Society (PCS) Members’ 2016 Exposé and the Apparent Ongoing Representation/s of Automated Election Rigging

Unfortunately, corruption is very much part of the automated elections. In January 11, 2016, I was invited at first, to be a reactor, and then a de facto speaker at the continuing education seminars of the PDP-Laban party, at the invitation of the San Beda lawyers group that supported current President Duterte. The event was held in the afternoon at the Waling Waling Room, Club Filipino, Greenhills, San Juan City, Metro Manila. As I found out later, I was supposed to react to an exposé that will be shared by two members of the PCS, of which I too, was a member for many years, and to share some of the findings I have unearthed in my then soon to be published book “Cryptology: The Law and Science of Electronic Secrets and Codes”.

It turned out that the 2 PCS members were Mr. Leo Querubin, and the election lawyer Atty. Glen Chong. For over an hour or so, I listened with great interest and disgust at their story of certain group/s apparently deeply connected, who were approaching candidates and political parties, offering, and guaranteeing their chances of winning the automated elections, for the right price of course, and even ensuring the margin of winnings of any candidate, again depending on the price. The two PCS members evidently investigated the claims of these group/s and found that they have the apparent technological and logistic means to back up their offers and guarantees. The PCS members did not name any names of the group/s or specific individuals, but they gave the impression from their exposition that these people and entities are known in political circles. I thought for sure that the lid on this would be blown right after the event. But nothing happened.

This was not the only time that this matter had been raised. In the 2019 and 2022 election campaigns, several candidates have asked me about this, since they claimed they have all been approached by such group/s. They would not disclose to me the names of the persons involved, but that some of them are lawyers who act as frontliners or mediators. I had challenged these politicians to publicly disclose these group/s or people but they are not willing to do so. From a political standpoint, disclosure would be tantamount to being a pariah and would run counter to the Machiavellian ethic that politics is amoral and any means necessary to win is useful, justifiable, and thus must be pursued, or at least not stopped, to be made available for those who have a use for these group/s. As long as this view pervades, and no politician steps in to expose these people who approached the, or with whom they have actually dealt with, we will not see an end to their activities.

And this is another reason why the existing automated election system (AES) should actually be discarded. These people/groups have made, and continue to create their fortunes, by kickstarting fraudulent political wins with their nefarious familiarity and manipulation of the current AES. Those who buy in to these groups’ enterprise, defeat the true electorate will. And it is no stretch of the imagination to posit, that by paying for their false wins, these “winners” will take from the public coffers, what they gave to these group/s, and so much more, after three or six years of being in public office! It is a perpetuation of an abominable horrific system that quite a few people are willing to close their eyes, for the sake of political convenience and survival. Let us trust that those candidates who have actually espoused fighting corruption as their platform, and who win legitimately, would probe this matter, end these groups’ existence and virulence, and pursue the establishment of a new AES that would be resistant to fraudulent manipulation of invested entities and groups.

Lawbytes 213: The First Responders’ and Survivor’s Training in Electronic Evidence on Online Sexual Harassment and Violence in the UP Cebu System, Copyright by Dr. Atty. Noel G. Ramiscal

The University of the Philippines Cebu System (UPCS) reached out to me, through its Office of Anti-Sexual Harassment (OASH) Coordinator, the very dedicated and brilliant Atty. Archill Nina F. Capistrano, to deliver two training seminars for the First Responders to victims of sexual harassment and offenses under the Safe Spaces Act. This undertaking I learned, had been planned since last year by the OASH, the Gender and Development Office, and the Office of Student Affairs. The premise of their program is to capacitate anyone, be it a student, faculty, administrative employee or official of the UPCS, to adequately respond to the needs of any UPCS constituent who had been victimized by sexual harassment, in real or virtual time, who comes out to them, for help and assistance, or simply for comfort and understanding.

UP Cebu First Responders’ & Survivors’ ASH Training Poster April 22 2022

In the past seminars I have conducted for different government agencies, private corporations, as well as higher education institutions, the training was always geared for lawyers, HR practitioners and other professionals who might actually be dealing with issues related to sexual harassment in the workplace. The genius stroke in the UPCS program is its inclusivity, which is something that should be mandated across all workplaces and educational institutions all over the Philippines.

One of the training seminars I conducted for the UPCS was last April 22, 2022. In order to contribute something of true value to the UPCS program, I decided to, first, concentrate on electronic evidence collection, which is something that I know Gender and Development (GAD) or Anti-Sexual Harassment (ASH) seminars given by various training providers in the Philippines do NOT provide.

Second, I decided to include in my training seminar, the very essential aspect of addressing the electronic evidentiary interests and needs of the survivors. I have successfully won all the anti-sexual harassment cases I have filed for my clients who are the survivors, and I can honestly say that no training of this nature is given to survivors that I am aware of.

UP Cebu First Responders’ Anti-Sexual Harassment Training Slide

One of the very crucial things that should happen in order to have a successful survivor-first responder (FR) relationship is the building of trust. Survivors would only volunteer information to the FR, if they feel they can trust the FR, with their reputation and their lives. This can only happen if the FR is non-judgmental and can absolutely keep the sacrosanct duty of safeguarding the confidentiality of the information given to them by the survivor.

I emphasized at this point that, as I have found in my own experiences with my clients, the process of collecting, gathering and piecing the electronic evidence can be therapeutic and empowering for the survivors. It provides them with a way of taking control of the situation, taking back their self-respect in realizing that they were not responsible for the abuse they suffered, and directing the narrative against the offender.

Dr. Atty. Noel G. Ramiscal Title Slide Powerpoint UPCebu presentation

One important form that I have actually used in documenting online abuses is the Technology Log-in Abuse Form (TLAF), which can take the form of an Excel spreadsheet, or even a diary of the survivor. What is important is that no matter what form it takes, the documentation would include all the relevant details of the abuse/harassment/violence committed by the offender, like the technology used, the context and the content of the offending act, the date and time stamps, and other relevant metadata.

The amount of documentation would obviously depend on the type of the electronic evidence and the relevance of such evidence. I showed the participants different types of electronic evidence and some of the protocols of introducing and presenting these pieces of evidence in administrative disciplinary tribunals like the Committee on Decorum and Investigation (CODI), which must rule on these cases using the “substantial evidence” standard.

Dr. Atty. Noel G. Ramiscal UP Cebu FR Survivor Training ASH1st2022 Random Group Photo

I stressed several times that the survivor’s right to data privacy must be respected relative to the electronic data that are present in the electronic devices that may be subjected to examination by the CODI. The FR can help the survivor determine in the first instance, what maybe the types of electronic evidence that are possible for presentation, and the CODI members can inform the survivor, during the hearing that s/he must only present electronic data that are vital in helping the CODI decide the validity of his/her case. For instance, if the electronic evidence consisted mostly of text messages, the survivor must present not merely the content and screenshots of the most offending text message/s sent by the offender. The survivor must present the entire conversation between the offender and her/him, which might consist of several/many text messages. It is also important for the survivor to present the screenshots of these text messages with the date and time stamps. The number of the mobile device from where the messages originated, which can be attributed to the offender, can also be presented via a screenshot of the directory from the survivor’s mobile phone.

The CODI has no lawful right to demand from the survivor the examination of the entire electronic data in the survivor’s mobile phone. This would exceed the relevancy requirement, and it could also allow the offender access or knowledge to information that s/he might use later on to further harass or wreak damage to the survivor.

One of my recommendations is that aside from a lawyer, an I.T. person should be part of the CODI when electronic evidence is material to the investigation. This I.T. person must be knowledgeable about the technical standards and protocols for collecting electronic data so that s/he can advice the CODI on essential matters like when can an electronic data be considered to have been altered, tampered with or spoliated.

Dr. Atty. Noel G. Ramiscal Certificate of Appreciation from UPCebu April 22 2022

Kudos, and utmost gratitude to Dr. Clement C. Camposano, the OIC Chancellor for the UPCS, Dr. Patricia Anne G. Nazareno, the Vice Chancellor for Academic Affairs of the UPCS (who both declared my lecture “cutting edge” in their signed Certificate of Appreciation), and Atty. Capistrano for giving me this opportunity to share an important part of my advocacies. Thank you to Mr.  Michael Andrew Galorio, and the TLRC, who took care of the technical requirements for the seminar. Of course, a great shout-out to all the students of Atty. Capistrano, all the other students from UPCS, their respective tribes, the faculty members from some colleges and members of the public who viewed the event via Zoom and FaceBook Livestream. It has been my privilege to share these with all of you. God Bless Us!

Philippine Lawbytes 177: Empathy, Ingenuity, Technology, in Full Display at the Philippine Australian Alumni Network Summit of 2020, Copyright by Dr. Atty. Noel G. Ramiscal

Last Saturday (December 19, 2020), I got the opportunity to join an especial event that the Philippine Australian Alumni community brings together annually. It is the Philippine Australian Alumni Network Summit, with the theme “Innovators and Influencers: Making an Impact to Recovery,” held of course, via Zoom, complemented by Howspace, Canva and Sli.do.

Dr. Atty. Noel G. Ramiscal donning the black Tudor velvet bonnet with 2 red silk tassels for a UQ Ph.D holder

Dr. Atty. Noel G. Ramiscal in his UQ garb with the hood in rich blue silk and black trencher with black tassel for his Master of Laws Advanced degree in 2000

Since I have not been to these gatherings in several years, and my sojourn in Australia for about seven years have left my “wanderlusting” self, nostalgic, I thought it would be great to commune with fellow Australian alumni, for a few hours, without leaving the hinterlands of Laguna.

Ms. Milalin Javelana, the Program Director of the Australia Awards and Alumni Engagement Program Philippines or AAAEPP (the entity that organized the whole event), kickstarted it by introducing the Australian Ambassador to the Philippine, His Excellency Steven Robinson AO. He, as we learned had been a friend to the Philippines for several decades, opened the event with the right mix of somberness and Aussie good naturedness. 

The current Australian Ambassador to the Philippines, His Excellency Steven Robinson AO

Mr. Donald Lim, the CEO of DITO CME, and a former executive of ABS-CBN, gave a comprehensive overview of how the pandemic has affected businesses all over the world and the Philippines. He gave insights on how businesses can survive and thrive by embracing the changes and adapting their business models and technologies to the new normal, using as an example, one of his family’s businesses, the Family Mart on wheels.

Mr. Patrick Lim, CEO of DITO CME

Ms. Joji Pantoja, the CEO and President of Coffee for Peace (CFP), gave a vivid example of how a seemingly ordinary product, coffee, can lead to peace, and economic emancipation for small indigenous communities and families in Mindanao. She, with her husband and their organization based in Canada, gave training not merely in coffee production technology, but also conflict management to the families they selected. The success of their “Kapeyapaan” venture was recognized internationally in Norway this year when CFP won the Oslo Business for Peace Award. As an avid coffee drinker, to the point when my urine would sometimes smell like coffee (lol), I cannot wait for the day when I can walk up to Ms. Joji’s coffee shop in Davao City and imbibe shots of their renowned Malipayon Honey Arabica brew!

Ms. Joji Pantoja, CEO Coffee for Peace, Inc.

The core of the event came next. The Innovators and Influencers Forum were led by three brilliant, articulate and beautiful women who are all successful in their fields, who shared with the alumni their passion, principles and perspectives on innovation and success. The panel was effectively moderated by Mr. Kim Patria.

Three brilliant, beautiful, influential innovators: Ms. Ace Gapuz, Ms. Marga Nograles and Ms. Cherrie Atilano

Ms. Ace Gapuz, the CEO of Blogapalooza Inc., talked about how social media and internet innovations have shaped the way information was created and disseminated by influencers all over the country, particularly during the pandemic. She shared two important tips to the success of being an influencer: be open and know the cultural dynamics of one’s target audience.

Ms. Marga Nograles, the CEO and founder of indigenous fashion dynamo, Kaayo Modern Mindanao, related how her burgeoning empire started with two indigenous women she hired to create some of her personal pieces, and then blossomed to such an extent that the husbands of the women she contracts with, want to go in the beading industry to make more money. She stated that the pandemic showed the value of repurposing indigenous materials and making them into face masks and personal protective equipment, some of which the company donated to frontliners.

Ms. Cherrie Atilano, the CEO and President of AGREA International, is a multi-awarded champion of food security, and a real farmer. Her personal commitment and professional life are centered on making the Philippines a sustainable food producer for its people first, and then the world, guided by the principles of no hunger, no food waste and no insufficiency. These were tested when the pandemic hit and there were national shortages on vegetables. She revealed that they instituted a program, that began in her own kitchen, where usable portions of vegetables that are about to spoil were saved and used to create meals that sustained communities. This initiative won an award in Brazil. One thing that stuck with me is her passion to change the narrative of farming, from one of dirt and drudgery, to being educated and “sexy.” And why not? Producing food that fuels Life, is more than sexy. It is necessary. And just by looking, hearing and learning from her, farming/farmers can indeed be glamorous.   

All the speakers at this summit, apart from being creative and ingenious in their fields, exhibited one very important trait, that is also a theme that ran through all their speeches and answers: empathy. Each of them, in their unique and purposeful ways, demonstrated compassion, generosity, and understanding for the plight of others during this pandemic, and adapted the knowledge and technologies they have, to answer some vital and crucial needs of the communities they serve. They are truly inspirational!

Five and a half hours passed by like a breeze.

Kudos and big Love to all the AAAEPP staff and volunteers, the technical personnel who seamlessly maneuvered over 190 participants to each of our respective Communities of Practice (CoP), during the breaks, the host, Ms. Bea Almoite, and moderators, the sponsors, and the Alumni talents that passionately serenaded us after the talks. It was truly worth the Time. Deo Gratias!

Philippine Lawbytes 176: Teens and Technology: The 2020 Kid of the Year and the Teen Candidate for the Patron Saint of the Internet (Part 2), Copyright by Dr. Atty. Noel Guivani Ramiscal

In December 3, 2020, the 15 year old multi-awarded scientist Gitanjali Rao from Colorado, U.S.A. was chosen by Time, as the Kid of the Year, in conjunction with Nickelodeon. Born a year before the Blessed Carlo Acutis died, Rao was selected from over 5,000 teens in the U.S. whose accomplishments in their young lives, have come to actually influence the way our future would be shaped and (hopefully) made.

Gitanjali, like Carlo, had early on figured out what her passion was. For Gitanjali, it was in the different fields of science and technology, and channeling the principles and discoveries in these fields to create and invent practical solutions to real world issues. She said in her Tony Burch Foundation interview that one of her earliest inventions was a device to detect snake bites.

But her claim to fame laid in her interest in carbon nanotube sensor technology, which comprise of molecules that can detect chemicals. This technology had been used by MIT for solid objects, so she, at the age of 11, applied what she learned from MIT to water, to detect the presence and levels of lead in it, following the horror story in Flint, Michigan, where lead poisoning had occurred due to the fact that over 9,000 lead service lines are used to transport water from main pipes to the homes of residents. She developed a device called Thetys (named after the Greek Goddess of fresh water), using the carbon nanotube sensor technology, paired with Bluetooth and a mobile app, that can detect and publicize the levels of lead on the water tested. The device is cheaper, reliable and faster than any of those found in the markets all over the world.

Gitanjali Rao, from screenshot of MSNBC interview

In her interviews with Time, tv stations and newspapers, she said that she is interested in genetics, and she is currently at work in developing a product to diagnose prescription ¬opioid addiction, and in detecting biocontaminants like parasites in water. Like Carlo, Gitanjali abhors cyberbullying. She has developed an app in its Beta stage called “Kindly” which use natural language processing and adaptive artificial intelligence to monitor speech. Once downloaded by a user in an e-device like a smartphone, it will read all the text entered into the device and search for trigger words of threats or bullying. Once spotted, the app will flash a warning sign and block the user from sending the text.

Getting to know these amazing teens’ achievements and their steadfast commitment to their visions have brought grateful tears and a wellspring of Faith in my heart. One very important thing that connects them is their selfless passion for sharing. The Blessed Carlo Acutis devoted his entire young life to serve others as he served God, whether it is on a one-on-one basis with a person in need or in the Internet. Pope Francis said that he “did not ease into comfortable immobilism, but understood the needs of his time, because he saw the face of Christ in the weakest. His witness indicates to today’s young people that true happiness is found by putting God in first place and serving Him in our brothers and sisters, especially the least”. (https://www.catholicjournal.us/2020/11/12/blessed-carlo-acutis-an-example-to-be-emulated/).

Gitanjali Rao’s pioneering and saving works are equaled not only by her humility, but also by her generosity of Spirit, Knowledge and of her Time. She told Time magazine (December 14, 2020 issue) that she has partnered with rural schools, STEM organizations and museums around the world to run innovation workshops to help young students develop their own inventions and she has mentored over 30,000 students. She has stated that “(m)y goal has really shifted not only from creating my own devices to solve the world’s problems, but inspiring others to do the same as well…Because, from personal experience, it’s not easy when you don’t see anyone else like you.”

I would like to wish you all a Very Meaningful, Secure and Loving Christmas! May the incoming New Year Grace Us with Love, Redemption, Strength, Courage, Great Health and Prosperity!

And may our world continue to be blessed and enlightened with more teens, more people like Carlo and Gitanjali, who are Originals in their own, but Kindred in Spirits, Minds, Hearts, and Deeds.

Philippine Lawbytes 175: Teens and Technology: The 2020 Kid of the Year and the Teen Candidate for the Patron Saint of the Internet (Part 1), Copyright by Dr. Atty. Noel Guivani Ramiscal

This 2020 has been a year that many people would probably want to forget. YouTube officially cancelled its annual “Rewind” tradition for 2020, because it has “been too much”. In the November 15, 2020 season finale of the “Last Week Tonight with John Oliver,” a show that I have come to appreciate, Oliver literally blew up “2020” in a segment called “*uck You 2020”.

But 2020 also showed us Faith and Hope in two very significant ways.

In October 10, 2020, a fifteen year old who died in 2006 was sanctified as the “Blessed” Carlo Acutis in a very moving ceremony in the Basilica of St. Francis, Assisi, Italy. Hagiographers have rightly justified the astounding values and virtues he practiced in his very short life. His deep commitment to the Eucharist and great devotion to Jesus Christ and the Saints were not mere religious affects, but formed the core of his understanding and appreciation of people. He had always sought to serve in the very ways he was led to serve, like picking up trash on his dog walks, teaching younger kids catechism, buying a homeless man a sleeping bed with his own savings, befriending and helping the friendless, immigrants, working people whose lives are so different from his privileged one.

The Blessed Carlo Acutis from carloacutis.com

But one important thing that struck me was his passion and skills for technology and the internet and how he used these to bring the Word of Faith in the Eucharist to many areas in the world that he will never get to visit. At 11, Carlo already had gained skills in creating websites and film editing. He started researching and cataloguing over 130 miracles of the Eucharist, or the process called transubstantiation, where the chalice or the bread and wine offered by the priest during the Eucharistic prayer, were changed into the heart (or piece of it) and blood of Jesus Christ. He turned his research and work into an outstanding exhibit made of 160 panels of historical data and pictures about these miracles. These panels had been displayed in many parts of the world that he did not get the chance to visit. These found their way into the Internet, with the panels being downloadable for exhibit in churches and universities, and anyone interested for that matter.

In the televised ceremony of his beautification as a Blessed, his mother stated that he believed that the Internet can be the atomic bomb for Love or evil. He rejected cyberbullying. One of his unforgettable insights is that all of us are born originals, but many turn out to be photocopies. It is a searing understanding of how the Internet, social media and other forms of technologies have brought about mass consumerism that brings soulless conformity.

Carlo refused to be a photocopy. He held onto his vision of the Infinite, to the God and Heaven of his faith, and moved on victoriously. An original.

Philippine Lawbytes 174: How Technological Ignorance and Incompetence of Prosecutors and a Judge Led to the Conviction of an Innocent Person, Copyright by Dr. Atty. Noel Guivani Ramiscal

As we move onto another decade, and new technological challenges, it is time to recount one of the most unknown and one of the saddest travesty of justice in the history of Information Technology. Early this millennium, Computer systems administrator Bret McDanel, worked for Tornado, a company that supplied email and voicemail accounts. He discovered a security flaw in his company’s software which made their customers’ accounts vulnerable to hacking. He warned his managers, but they ignored his pleas. He resigned but he was still allowed to keep his email account and send email through this account.

Upon learning that the company had not fixed the flaw even after he left, he decided to email 5,600 of Tornado’s customers to alert them about the vulnerability. Tornado responded by trying to delete McDanel’s email from the accounts of their customers! It shut down the system and finally plugged the security hole. But Tornado also went to the US Attorney Office and was able to convince them to prosecute McDanel under the Computer Fraud and Abuse Act in the theory that McDanel’s 5,600 emails overloaded their server and that email somehow “damaged” the Tornado’s email system because of the warning!

Bret McDanel from wired.com

To be clear, the security flaw observed by McDanel was fairly obvious to the naked eyes of a person who knows what to look out for. Tornado’s system captured a user’s login credentials, as part of the Universal Resource Locator (URL) when the user accessed his/her email account. These would be displayed in the address bar of the user’s Web browser – where it could be seen by anyone nearby. Furthermore, he found out that when a Tornado user logged into the Tornado email website, a numerical code known as “NID” is provided to the user to allow him/her to stay in the website. However, when the user clicks on a link from his/her email account to connect to an outside website, the “NID” would be transmitted by the Tornado system to the outside website, thus allowing third parties to gain access to the user’s email account because of the NID.

As system administrator, McDanel did not need to hack Tornado’s system to find the security flaws. He just needed to use his eyes and knowledge of technical matters. He was allowed to look for vulnerabilities like this, as part of his employment! When he emailed Tornado’s customers to warn them of the vulnerability, he was arguably still within his rights because his email privilege was not revoked by Tornado even after he resigned.

THE U.S. GOVERNMENT POSITION

The government managed to convince the District Judge that the email warning of McDanel caused “impairment” to Tornado’s computing network, damaging the server because it supposedly crashed due to the volume of the emails sent. But in the U.S. Government’s Motion for Reversal of Conviction (yes, the US Government finally and belatedly saw the injustice done here), the government conceded that the actual damage to Tornado’s server did not even meet the minimum amount of damages under the CFAA, which is $5,000. Besides, the fixing of the server and the application of the security fix to the vulnerability can only and ultimately be attributable to the fault of Tornado who knew about the vulnerability but intentionally refused to repair it, until McDanel’s email.

What the U.S. Government’s real theory which formed its cause of action against McDanel, is that the email warning set by McDanel impaired the integrity of the Tornado’s computer system “by revealing confidential information relating to the operation of the Tornado server”.

WHAT IT MEANT

The prosecution and conviction of McDanel was swift and fast because there was no jury trial. Only a judge (District Judge Lourdes G. Baird) decided his fate and he was imprisoned for 16 months. He served his sentence and filed an appeal to have his conviction overturned. Realizing its mistake, the U.S. Government filed a motion to have the conviction reversed in the 9th U.S. Circuit Court of Appeals in San Francisco, which was granted. But the damage caused to McDanel by Tornado, the prosecutors and the judge who convicted him are irreversible [see Paul Ohm, The Myth of the Superuser: Fear, Risk, and Harm Online, April, 2008, 41 U.C. Davis L. Rev. 1327, that cited the US Government’s Motion for Reversal of Conviction, United States v. McDanel, No. 03-50135 (9th Cir. Oct. 14, 2003), available at http://www.lessig.org/blog/archives/govt.pdf

The charge against McDanel actually translates to the damage caused to the reputation of Tornado due to the publication of the vulnerability through the email system, and not to some actual damage to its server or any computer. If anyone is guilty of electronic damage here, it is Tornado since it did not fix the flaws after being informed about them, and it was the one that tried to delete the email warning from the accounts of their 5,600 customers, causing interference and potential tampering and destruction of e-data against their customers!

This case is the first and only American case where an innocent whistleblower paid with his freedom due to the erroneous and incompetent understanding of the technology involved by the prosecution attorneys who manage to convince a technologically ignorant judge that damage to a computing system actually extends to, or is synonymous, to the damage caused to the reputation of the owner of the computing system.

More than a disgrace, it is an example of patent injustice that Philippine courts should learn from so as not to replicate in this jurisdiction.

Philippine Lawbytes 172: Dr. Atty. Noel Guivani Ramiscal’s Request for Advisory Opinion on the Legality of Spamming to the National Privacy Commission

As those of you who follow my blog or who have attended my lectures on Data Privacy or Cybercrime or Electronic Evidence know, I have struggled with the concept of spamming being declared legal by the Philippine Supreme Court in 2014. So I decided to ask the National Privacy Commission about its take on this matter. Here is a copy of my formal request for an advisory opinion:

July 16, 2020

National Privacy Commission, 5th floor, GSIS Headquarters Building, Financial Center, PICC, Pasay City (info@privacy.gov.ph)

Dear NPC Commissioner Raymundo Liboro:

REQUEST FOR ADVISORY OPINION ON THE LEGALITY OF SPAMMING AND ITS EFFECTS ON DATA PRIVACY

I am Dr. Atty. Noel G. Ramiscal, a privacy and consumer advocate, drafter of privacy policies, a lecturer on the Data Privacy Law for several years, and one of the lawyers consulted by the former Commission on Information Communication Technology (CICT) on the Data Privacy and Cyber Crime Bills, way before they were passed into laws.

One of the biggest contradictions that I have written and discussed in different forums for quite some time, and a matter that truly gives me quite a legal and ethical conundrum is the Philippine Supreme Court’s decision legalizing spamming and the contrary views of different government and private entities on spamming.

The Philippine Cybercrime Prevention Act (R.A. 10175) criminalized spamming, which was construed as “unsolicited commercial communications” in this manner:

Unsolicited Commercial Communications. – The transmission of commercial electronic communication with the use of computer system which seeks to advertise, sell, or offer for sale products and services are prohibited unless:

(i) There is prior affirmative consent from the recipient; or

(ii) The primary intent of the communication is for service and/or administrative announcements from the sender to its existing users, subscribers or customers; or

(iii) The following conditions are present:

(aa) The commercial electronic communication contains a simple, valid, and reliable way for the recipient to reject receipt of further commercial electronic messages (opt-out) from the same source;

(bb) The commercial electronic communication does not purposely disguise the source of the electronic message; and

(cc) The commercial electronic communication does not purposely include misleading information in any part of the message in order to induce the recipients to read the message [Chapter II, Section 4 (3) (c)].

In 2014, however, the Philippine Supreme Court decided, in the consolidated challenges against R.A. 10175 [Biraogo v. NBI and PNP, G.R. No. 203299; ALAB NG MAMAMAHAYAG et al. v. Office of the President et al., G.R. No 203306; Adonis et al. v. Exec. Secretary et al., GR 203378; Disini et al v. DOJ Secretary et al., G.R. 203335; Senator Guingona III v. Executive Secretary et al, G.R. No. 203359; Bagong Alyansang Makabayan et al. v. Aquino III, GR 203407; Ateneo Human Rights Center v. Exec. Sec. et al, GR 203440; National. Union of Journalists, PPI, et al, v. Exec. Sec., GR NO. 203454; Castillo, Andres v. DOJ Sec. et al., GR No. 203454; Cruz et al, v. Aquino III, et al., GR 203469; Philippine Bar Association v. Pres. Aquino III, GR NO. 203501; Bayan Muna v. Exec. Sec., GR 203509; National Press Club v. Aquino III, GR 203515; and Philippine Internet Freedom Alliance v. Exec. Sec., et al, GR 203518.], that spamming is legal.

The pertinent part of the en banc decision (held by 8 Justices, including the ponente) reads:

But, firstly, the government presents no basis for holding that unsolicited electronic ads reduce the “efficiency of computers.” Secondly, people, before the arrival of the age of computers, have already been receiving such unsolicited ads by mail. These have never been outlawed as nuisance since people might have interest in such ads. What matters is that the recipient has the option of not opening or reading these mail ads. That is true with spams. Their recipients always have the option to delete or not to read them.

To prohibit the transmission of unsolicited ads would deny a person the right to read his emails, even unsolicited commercial ads addressed to him. Commercial speech is a separate category of speech which is not accorded the same level of protection as that given to other constitutionally guaranteed forms of expression but is nonetheless entitled to protection. The State cannot rob him of this right without violating the constitutionally guaranteed freedom of expression. Unsolicited advertisements are legitimate forms of expression (citation omitted).

Under the Philippine Civil Code, the decisions of the Supreme Court form part of the law of the land. It should have been settled that such en banc pronouncement decriminalized spamming.

But after that decision was rendered, the Bangko Sentral ng Pilipinas (BSP) Dep. Governor Espenilla signed MEMORANDUM CIRCULAR NO. -M2015-017 2015, dated March 25, 2015, which reiterated the criminalization of spamming under the repealed provision of R.A. 10175, citing National Telecommunication Commission (NTC) Circulars issued in 2006 and 2009!

It is also telling that the NTC has not issued any circular after the 2014 Supreme Court decision legalized spamming.

In 2016, I lectured at an MCLE seminar for lawyers of one of the biggest ISPs/Telcos in the Philippines. I apprised them that their Privacy Policy and Fair Use Policy which prohibited spamming, are contrary to the Supreme Court 2014 ruling. As of the time I filed this request for an NPC advisory opinion, the relevant policies in their website still prohibit spamming.

An examination of the current policies of some of the biggest Telcos in the Philippines reveals that all prohibit spamming.

For example, Globe’s Website Terms and Conditions Agreement provide:

By way of example, and not as a limitation, you agree not to:

1. use the Service in connection with surveys, contests, pyramid schemes, chain letters, junk email, spamming, or any duplicative or unsolicited messages (commercial or otherwise); [8. Member Conduct, https://www.globe.com.ph/website-terms-conditions.html]

Globe’s Privacy Policy states “(w)e are not responsible for information, content, application, product, or service that we do not provide. But because we care for you and protect you, we take measures to fight spam, fraud, or any unauthorized messages that traverse our network” [5. PROTECTION OF PERSONAL INFORMATION, https://www.globe.com.ph/privacy-policy.html]

Smart’s Corporate Website Terms and Conditions obligates the user/viewer/client in this wise:

“You further understand and agree that sending unsolicited e-mail advertisements to the Web site or any user of the Web site or through voice computer systems is expressly prohibited by these Terms and Conditions. Any such unauthorized use of our computer systems is a violation of these Terms and Conditions and applicable “anti-spam” laws. In addition to any remedies that we may have at law or in equity, if we determine, in our sole discretion, that you have violated or are likely to violate the foregoing prohibitions, we may take any action we deem necessary to cure or prevent the violation, including, without limitation, the immediate removal of the related materials from this Web site. We will fully cooperate with any law enforcement authorities or court order or subpoena requesting or directing us to disclose the identity of anyone posting such materials.” [4. Inappropriate Materials and Submissions, https://smart.com.ph/Corporate/terms/].

PLDT’s Acceptable Use Policy stipulates that “(t)he Subscriber shall not use the Services to transmit unsolicited e-mail messages, including, without limitation, unsolicited bulk email, where such emails could reasonably be expected to provoke complaints (“spam”). Further, the Subscriber is prohibited from using the service of another provider to send spam to promote a site hosted on or connected to the Services” [V. EMAIL AND UNSOLICITED MESSAGES, https://m.pldthome.com/terms-and-conditions]

In the Statement of its Legal Rights, PLDT stated that it “will endeavour to notify the Subscriber of the activity deemed to be in violation of this AUP and request that the Subscriber cease such activity.  However, in cases where the viability of Services are potentially threatened or activity involves UCE/SPAM, mail relaying, alteration of the Subscriber’s source IP address information, denial of service attacks, illegal activities, harassment or copyright infringement, PLDT, at its sole discretion, shall exercise its right to immediately, and without need of any notification to the Subscriber, suspend the Service/s or the Subscriber’s access to the Service/s.  Notwithstanding PLDT’s exercise of the remedies mentioned about, it shall not be prevented from taking any other appropriate action, legal or otherwise, against the Subscriber for violations of the AUP, which may include termination of the Services”  [https://m.pldthome.com/terms-and-conditions].

Sun Cellular/Digitel Mobile Philippines’ Website Terms and Conditions provide that “unsolicited e-mail advertisements to the website or any user of the website or through voice computer systems is expressly prohibited by these Terms and Conditions. Any such unauthorized use of our computer systems is a violation of these Terms and Conditions and applicable “anti-spam” laws. In addition to any remedies that the company may have at law or in equity, if determined through our sole discretion that any user has violated or is likely to violate the foregoing prohibitions, Digitel Mobile Philippines, Inc. may take necessary actions to cure or prevent the violation, including, without limitation, the immediate removal of the related materials from this website. The company will fully cooperate with any law enforcement authorities or court order or subpoena requesting or directing us to disclose the identity of anyone posting such materials.” [IV. Inappropriate Materials and Submissions, https://suncellular.com.ph/terms]

These companies have cadres of lawyers formulating their policies. These lawyers are supposed to know the current state of the law on spamming, which is the 2014 Supreme Court decision, not the decriminalized provisions of R.A. 10175, nor the 2006 and 2009 NTC Circulars. Yet the policies they have drafted and their companies implement still continue to go against the Supreme Court decision. 

THE ETHICAL AND LEGAL COMPLICATIONS OF THE SUPREME COURT DECISION FOR DATA PRIVACY ADVOCATES AND ACTIVISTS AND PHILIPPINE CONSUMERS

This clear, unreconcilable conflict between the Philippine Supreme Court ruling, and the positions of the entities I mentioned place data privacy policy drafters in a legal and ethical quandary, and stakeholders, including Philippine consumers at risk.

As lawyers, we are bound to follow the law, including Supreme court decisions. But at the same time, as data privacy advocates and privacy policy drafters, we know that spamming can actually lead to violations of the data privacy law, particularly if used in phishing, and other means of identity theft.

But since the Supreme Court decriminalized it, there appear to be two options that are done, none of which in my opinion is legally and ethically sound.

The first, pretend the Supreme Court decision does not exist, and rely on the ancient issuances of the National Telecommunications Commission way back in 2006 and 2009 that prohibit spamming, as well as the decriminalized provisions of the Philippine Cybercrime Prevention Act that prohibited spamming, which is what the BSP Circular did. This would violate the lawyer’s ethical duty to keep abreast of the latest legal development, at least in this case, the decriminalization of spamming.

Or second, do not mention in the policies we draft, spamming, or do not expressly prohibit it, which would go against our well-grounded belief in the undesirability of spamming, and would compromise our sworn duty to protect the interests of our clients over their IT systems, email accounts, data privacy rights and the security of their identities.   

THE URGENT NECESSITY FOR THE NPC TO ADDRESS THIS MATTER DIRECTLY

Now the NPC has not addressed this issue directly.

I endeavored to read all the NPC advisory opinions posted in the NPC website, and please correct me, if I am wrong, but this matter has not been raised by any other person or entity to the NPC.

The only relevant opinion I came across that alluded to spamming concerned the controversy surrounding the FaceBook “View As” feature which led to the compromise of the personal information of 755,973 Philippine-based Facebook user accounts [FaceBook Forced Log-Out & Stolen Tokens of Philippine Users (CID Case 18-J-162)]. Here the NPC found that “the risk and vulnerability of Filipinos to spam and phishing are regarded as one of the highest in the world. According to the Are You Cyber Savvy Report from Kaspersky Lab, approximately 9 out of 10 Filipinos are susceptible to phishing attacks” and “considerations of risk must always consider the cultural milieu in which the risk is appreciated. For instance, this Commission takes notice that identity verification systems throughout the Philippines are quite weak.” This led the NPC to order FaceBook to notify all affected data subjects and provide identity theft and phishing insurance for affected Filipino data subjects.

The italicized and underlined portion I emphasized, and the remedies given to Philippine FaceBook users by NPC, apparently show that NPC is steering in the direction of the position of the BSP and the ISPs/Telcos that I mentioned.

But for the sake of clarity, the status of data privacy in this country, and the welfare of Philippine consumers who rely on digital communications and transactions, particularly at this time, please state:

1. What is the clear unequivocal position of the NPC with respect to the legality or illegality of spamming?;  and

2. What are the disadvantages of spamming, on the data privacy rights and digital identities of Philippine netizens?

Such clarification by your agency, would be the one that I would cite in crafting my clients’ policies, in my lectures and in my advocacies.

Thank you.

God Bless Us!

Regards,

DR. ATTY. NOEL GUIVANI RAMISCAL

University of Queensland (Australia), Ph.D. Law

Law and IT Evangelist, Data Privacy Advocate Cyberlawyer